Miller v. Portfolio Recovery Associates, LLC.

Filing 59

Order Granting Defendant's Motion for Summary Judgment and Denying to Defendant's Motions to Exclude as Moot (Doc. Nos. 673 , 850 , 885 ). Signed by Judge John A. Houston on 07/05/2023.(All non-registered users served via U.S. Mail Service)(jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IN RE PORTFOLIO RECOVERY
ASSOCIATES, LLC, TELEPHONE
CONSUMER PROTECTION ACT
LITIGATION

Case No.: 11md02295 JAH-BGS
Member cases:
All member cases

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
DEFENDANT’S MOTIONS TO
EXCLUDE AS MOOT
[Doc. Nos. 673, 850, 885]

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Pending before the Court are Defendant’s motion for summary judgment (Doc. No.

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850) and motions to exclude (Doc. Nos. 673, 885). For the reasons discussed below, the

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Court GRANTS Defendant’s motion for summary judgment and DENIES Defendant’s

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motions to exclude as moot.

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DISCUSSION

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I. Motion for Summary Judgment

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A. Legal Standard

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Summary judgment is properly granted when “there is no genuine issue as to any

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material fact and the movant is entitled to judgment as a matter of law.” FED.R.CIV.P.
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56(a). Entry of summary judgment is appropriate “against a party who fails to make a

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showing sufficient to establish the existence of an element essential to that party’s case,

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and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

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477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial

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burden of establishing an absence of a genuine issue of material fact. Celotex, 477 U.S. at

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323. Where the party moving for summary judgment does not bear the burden of proof at

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trial, as here, it may show that no genuine issue of material fact exists by demonstrating

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that “there is an absence of evidence to support the non-moving party’s case.” Id. at 325.

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The moving party is not required to produce evidence showing the absence of a genuine

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issue of material fact, nor is it required to offer evidence negating the non-moving party’s

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claim. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 885 (1990); United Steelworkers

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v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989). “Rather, the motion may,

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and should, be granted so long as whatever is before the District Court demonstrates that

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the standard for the entry of judgment, as set forth in Rule 56(c), is satisfied.” Lujan, 497

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U.S. at 885 (quoting Celotex, 477 U.S. at 323).

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Once the moving party meets the requirements of Rule 56, the burden shifts to the

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party resisting the motion, who “must set forth specific facts showing that there is a genuine

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issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Without

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specific facts to support the conclusion, a bald assertion of the “ultimate fact” is

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insufficient. See Schneider v. TRW, Inc., 938 F.2d 986, 990-91 (9th Cir. 1991). A material

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fact is one that is relevant to an element of a claim or defense and the existence of which

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might affect the outcome of the suit. The materiality of a fact is thus determined by the

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substantive law governing the claim or defense. Disputes over irrelevant or unnecessary

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facts will not preclude a grant of summary judgment. T.W. Electrical Service, Inc. v.

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Pacific Electrical Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson,

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477 U.S. at 248).

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When making this determination, the court must view all inferences drawn from the

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underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475
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U.S. at 587. “Credibility determinations, the weighing of evidence, and the drawing of

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legitimate inferences from the facts are jury functions, not those of a judge, [when] ... ruling

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on a motion for summary judgment.” Anderson, 477 U.S. at 255.

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B. Analysis

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Defendant argues it is entitled to summary judgment because Plaintiffs are unable,

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as a matter of law, to demonstrate that any of Defendant’s calling technologies constitute

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an automatic telephone dialing system (“ATDS”) under the Telephone Protection Act

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(“TCPA”). Specifically, Defendant argues there can be no TCPA liability where the

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telephone number in question was not randomly or sequentially generated, and Plaintiffs

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expressly disclaim that any of the numbers called were generated with a random or

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sequential number generator. Defendant also contends its calling technology used to call

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Plaintiffs, Asimut, PRANet, and CCT, are not capable of automatic, non-manual dialing

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and, therefore, Plaintiffs cannot meet their burden to show Defendant used an ATDS to

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place those calls. Defendant further argues Plaintiff cannot recover treble damages because

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there was no violation and, Defendant was at all times acting on a “reasonable

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interpretation” that the TCPA required random or sequential dialing and did not know that

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the Asimut technology it used to call Plaintiffs could be considered an ATDS.

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In opposition, Plaintiffs contend the Court should limit the issues of the summary

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judgment motion to common issues relating to the nature of Defendant’s telephone dialing

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systems and the only issue before the Court is whether there is a genuine issue of material

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fact as to the nature of Defendant’s telephone dialing systems. They argue Defendant fails

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to demonstrate the dialing systems do not use a random or sequential number generator to

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store numbers in the dialing process. They further contend Defendant’s argument that its

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systems did not have the ability to randomly or sequentially generate telephone numbers is

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not relevant because Plaintiffs argue Defendant’s system had the ability to store numbers

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using a random or sequential number generator.

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This Court previously determined, based upon the Supreme Court’s decision in

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Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), the definition of an autodialer under the
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TCPA does not concern systems that randomly or sequentially store and dial numbers from

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a list that is generated in a non-random and non-sequential way. See Order Denying Plas’

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Application to Conduct Discovery at 6-7 (Doc. No. 843). Plaintiffs disagree with the

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Court’s determination. Since the Court’s previous decision and during the pendency of the

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instant motion for summary judgment, the Ninth Circuit has concluded that “an ‘automatic

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telephone telephone dialing system’ must generate and dial random or sequential telephone

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numbers under the TCPA’s plain text.” Borden v. eFinancial, LLC, 53 F4th 1230, 1233

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(9th Cir. 2022); see also Brickman v. United States, 56 F.4th 688 (9th Cir. 2022).

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Plaintiffs provide no evidence that the numbers called were randomly or sequentially

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generated and, in fact, acknowledge they were not. See Amended Complaint ¶¶ 25, 37

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(Doc. No. 484) (Plaintiffs’ allegation that the numbers dialed were obtained from skip-

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tracing services.); Motion to Open Discovery Hearing Transcript 3:12–15 (Doc. No. 804)

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(“Obviously, this is a debt collection type cause so they’re not making up ten-random digits

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of numbers; they have a database of numbers and they are calling from that database list.”).

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Accordingly, the undisputed evidence demonstrates Defendant did not utilize an ATDS

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and, therefore, Defendant is entitled to judgment.

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II. Motions to Exclude

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Defendant moves to exclude testimony of Plaintiffs’ expert Randall Snyder pursuant

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to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrel-Dow Pharmaceuticals,

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509 U.S. 579 (1993). Because the Court finds the undisputed evidence demonstrates

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Defendant did not utilize an ATDS based on Plaintiffs’ acknowledgment that the numbers

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dialed were not randomly or sequentially generated, and, therefore, does not reach any

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issue as to which the testimony is relevant, the Court denies Defendant’s motions to

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exclude as moot.

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CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED:

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1.

Defendant’s motion for summary judgment (Doc. No. 850) is GRANTED;

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2.

Defendant’s motions to exclude (Doc. Nos. 673, 885) are DENIED as moot;
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3.
DATED:

The Clerk of Court shall enter judgment accordingly.
July 5, 2023

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_________________________________
JOHN A. HOUSTON
United States District Judge

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